September 21, 2011

Host: Ted Simons

Andrew Thomas Ethics Hearing

An update on the ethics hearing for former Maricopa County Attorney Andrew Thomas and two of his former deputies with attorney Karen Clark who specializes in legal ethics and attorney discipline cases.

Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. The legal careers of former Maricopa County county attorney Andrew Thomas and two of his former deputies are on the line. The three are defendants in an ethics hearing involving alleged violations related to investigations of county officials that prosecutors characterize as an abuse of power. Here to share her observations about the hearing is Karen Clark, a former ethics counsel for the state bar of Arizona. She teaches legal ethics and in her private practice she specializes in represents lawyers and judges in disciplinary matters. Good to have you back on the show. Thanks for joining us.

Karen Clark: Thank you very much.

Ted Simons: Where does the hearing stand now? Where are we?

Karen Clark: Well, basically you see the bar counsel teeing the whole thing up. Laying the factual landscape about what happened here. And it is a very complicated and years long factual landscape. You've had testimony from some of the higher ups within the county attorney's office, and now this week moving on to the supervisors.

Ted Simons: Let's talk about Don Stapley testimony. He said his family and his wife was ruined by what he called an outrageous probe, the most terrifying experience of his life, he said he got emotional, how does that play in an administrative hearing like this?

Karen Clark: Well, the reason that the bar counsel are trying to get that testimony out is because under these American bar association standards for disciplining attorneys, there are four factors in deciding the sanction, and one of those factors is the injury to the victim. Now, the lawyers under the ABA standards have duties to lots of different constituency, the profession, the courts, but in this particular set of circumstances I think the bar counsel are trying to prove the injury by proving the impact upon the players that were involved.

Ted Simons: I notice that the supervisor Stapley also mentioned he thought it all started when he questioned Andrew Thomas as county attorney hiring of former friends, people on his campaign, he called it political patronage. That gets on the record, doesn't it?

Karen Clark: Absolutely. Gets on the record in the hearing, you mean?

Ted Simons: Yes.

Karen Clark: Yes, it does. You know, this is partly political war. This was a political war that was going on, and so you have political theater in the courtroom reflecting what happened.

Ted Simons: When you have a former chief deputy of Andrew Thomas's testifying as he did that he warned Thomas against the racketeering suit, said it was unfounded, a misuse of the law and should be for clearly criminal conduct only, that's pretty tough stuff.

Karen Clark: That's pretty devastating testimony. The lawyers, the respondent lawyers, Mr. Thomas and the rest, haven't had attempts to start their case yet. The state bar goes first, they have a burden by proving by clear and convince can evidence their charges. From what you heard from the opening and we all pretty much know is Mr. Thomas's defense is that he believed he had the evidence to do what he did, he believed that the fact warranted the actions that he took, the problem is going to be for him that now you have folks within his own office that were disagreeing with him at the time. And so from the bar counsel's perspective I think they're looking for evidence that any violations they might be able to prove were done knowingly or intentionally because he was getting this advice from the inside.

Ted Simons: Is he at the hearing? Has he attended anything so far, this hearing, Andrew Thomas?

Karen Clark: I haven't been there for all of it, but -- so it's a limited view. But I know at the beginning of the hearing there was discussion on the record with the presiding disciplinary judge that he might not be there, and didn't have to be there. That's very, very unusual.

Ted Simons: I was going to say, you would think they would be there front and center the whole time.

Karen Clark: I was very surprised. I fully expected him to be there. That's very unusual in a lawyer discipline system. As you know, I was a bar counsel for many years and a hearing would not be held unless the lawyer was right there. Because part of the process is not only to address any misconduct they might have done, but also the lawyer needs to know if they did something wrong. So they usually are forced to sit and listen to what the evidence is so they can understand not only why the decision might happen, but also where they went wrong.

Ted Simons: We had some fireworks I should say regarding the lead attorney for Lisa Aubuchon and apparently he and the judge, they got into quite a scrap. What was that about?

Karen Clark: It had to do with some sweeping of some funds that had happened, the board of supervisors apparently had swept a certain amount of funds, $6 million, and then a law was passed by the legislature authorizing apparently further sweeps, and then additional monies were swept. Mr. Moriarity was trying to make a point through Mr. Mcdonald, I believe, one of Thomas's chief deputy attorneys, that that sweeping of funds was an attempt to gut the office. In retaliation for some of the actions that Mr. Thomas had taken, actions they are saying were right and justified. But the judge wasn't having anything of it. He basically told him because the law had been passed, it's presumed that the board was acting within their lawful authority and therefore he disagreed with Mr. Moriarity, told him to move on, and when he tried to make a further record, they tussled a little bit.

Ted Simons: To the point that Mr. Moriarity said I'm totally intimidated by you, judge. That very likely could have been intimidated, but that sounds like an appeal starting.

Karen Clark: Mr. Moriarity has a client to represent, and he's got to do the job he's got to do. So whether he really was intimidated or whether he was trying to make a record for appeal for his client, was as you know he moved for a mistrial right after he said that. Whether he was trying to lay the record for an appeal, that might have been his job, or he might really have been intimidated. Judge O'Neil can be an imposing figure, that's for sure.

Ted Simons: If there is an appeal, they can go directly to the adds Supreme Court?

Karen Clark: They can only go directly to the Supreme Court. That's the only Avenue of appeal. There are very, very rare exceptional cases where an attorney loses at their own Supreme Court. Each Supreme Court of each state has the authority to control and regulate the lawyers within that state. You can go to the United States Supreme Court, and a very rare number of attorney discipline cases have.

Ted Simons: If it's very rare I'm guessing this could be headed in that direction.

Karen Clark: It could be.

Ted Simons: Speaking of which, it sounds, again, I don't have clear knowledge of this, but it sounds as if both here in Arizona and even around the country, the legal community is watching this because of the unusual nature of the allegations and the proceedings.

Karen Clark: Absolutely. It's unprecedented. I belong to something called the association of professional responsibility lawyers, and I've been watching and asking questions on that listserve they have about whether anyone has seen any disciplinary hearing ever like this, and no one has. In Arizona we do have a precedent with some criminal prosecutors, and I was actually involved in one of those cases getting into serious trouble including the case that I was on being disbarred. But never the elected county attorney. That's one thing that makes this so dramatically different. And then also having three lawyers going to hearing together on such serious charges. It's really unprecedented.

Ted Simons: The elected county attorney being looked at and targeted, if you will, for doing things that he saw as his duty, as an elected official. It wasn't like he was doing something on the sidelines, this was because he was doing county attorney, he was doing X, Y, and Z.

Karen Clark: Legally, I was impressed by the opening statement by his attorney Don Wilson. He made some good points, including the fact that it's a tricky situation when you're an elected county attorney. Or an elected attorney general. You have constituencies, state agency, or a board, supervisors, they're your clients in some circumstances, and yet your job as a chief law enforcement officer sometimes is to investigate those very same people. So when are you their attorney, when are you not? When are you authorized to investigate and/or prosecute? They're tough legal issues. There is some teeth to his defense in that sense. The question is, did he overstep. That's what the issue is.

Ted Simons: And I don't want to you go too far as far as your opinion, but I'm going to ask anyway -- how is it going, do you think?

Karen Clark: We are during the state bar's portion of the case. Sometimes you watch a trial and when the state rests its case you think it's a slam desk, and then the defense gets to go and things look differently. But there's been some pretty tough testimony so far.

Ted Simons: We got another, what, how many more weeks to go?

Karen Clark: No one knows. Part of it seems to have gone a little slower than you think, I know that I've been told they set 25 to 45 days. I know judge O'Neil is going to try really hard to make it happen within that amount of time.

Ted Simons: Great information. Good to have you back on the show. Thanks for joining us.